Federal Court Decision (FOIA) on Information in Databases

Open records_logo stackedEarlier this month, the United States Court of Appeals for the Ninth Circuit published an interesting decision related to accessing information in government databases.

The decision, in the case of The Center for Investigative Reporting v. United State Department of Justice, held that “the use of a query to search for and extract a particular arrangement or subset of existing data from the [Firearms Tracing System] database [maintained by the Bureau of Alcohol, Tobacco, Firearms, and Explosives] does not require the creation of a ‘new’ agency record under [the federal Freedom of Information Act].”

The court’s decision contains a lot of good discussion about this important issue, mostly starting on page 37, such as: “[I]f running a search across these databases necessarily amounts to the creation of a new record, much government information will become forever inaccessible under FOIA.”

Importantly, the decision is in line with existing Pennsylvania case law regarding the Right-to-Know Law.

For example, in Gingrich v. Game Commission, the Commonwealth Court held: “Providing data from an agency database does not constitute creating a record.” And in Department of Environmental Protection v. Cole, the Commonwealth Court held: “An agency can be required to draw information from a database.”

In our training sessions for requesters, the Office of Open Records often discusses this issue. You can find more about the RTKL and information in government databases on slides 29 to 32 of this presentation, and you can listen to me discuss the issue here.

The RTKL & the SCOTUS Food Marketing Institute Decision

Office of Open Records LogoOn June 24, the U.S. Supreme Court issued its ruling in the case of Food Marketing Institute v. Argus Leader Media, which dealt with trade secrets and other commercial information that may be confidential under the federal Freedom of Information Act.

The Supreme Court held that, “Where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy,” the information is confidential under FOIA.

On Friday, Oct. 4, the Office of Open Records issued a final determination in a case dealing (mostly) with medical marijuana permit applications. The agency in that case argued that the Food Marketing Institute decision should apply to Section 708(b)(11) of Pennsylvania’s Right-to-Know Law, which is designed to protect trade secrets and confidential proprietary information.

The OOR held that the RTKL’s treatment of trade secrets and confidential proprietary information (including its definition of “confidential proprietary information”) is significantly different than FOIA’s treatment of such information.

The OOR concluded that because of the different language in the two laws, the SCOTUS decision in Food Marketing Institute “is of no consequence to the RTKL’s definition of confidential proprietary information” and, thus, does not apply to records sought under the RTKL.

The OOR’s analysis is on pages 24-25 of this decision.